Tuesday, December 2, 2014

The National Employment Lawyers Association (NELA) has a worthy blog about employment law and advocacy. Below is an item I wrote for them.Pleading standards are
important. A judge’s decision about whether a complaint is adequate can make
the difference between winning or losing a case.

Lawyers have been in a tizzy about
a pair of Supreme Court decisions, Twombly and Iqbal, in which
the Supreme Court allowed cases to be dismissed merely because the plaintiffs
could not be specific enough about their claims to make their cases
“plausible.” These decisions protected Bell Atlantic from an anti-trust claim,
and former Attorney General Ashcroft from liability for the prison beating of
Javad Iqbal shortly after the 9/11 attacks.

Employers have jumped on Twombly
and Iqbal by seeking immediate dismissal of almost every discrimination,
retaliation and consumer rights case. Lawyers had to adapt by becoming more
specific in their pleadings, anticipating the facts they would need to survive
the initial motion to dismiss. It had seemed that the old days of “notice
pleading” were over.

A new decision from the Supreme
Court, however, has made a major clarification of Twombly and Iqbal.
In Johnson v. City of Shelby, Mississippi, the Supreme Court said that Twombly
and Iqbal only apply to a party’s factual allegations, and there is
normally no requirement to plead the legal theory of liability.

Tracey Johnson and other Shelby
police officers filed their lawsuit after the City fired them. They claimed
that the City fired them because they uncovered criminal activity by one of the
City’s aldermen. The lower courts had dismissed their lawsuit because they had
failed to cite the applicable statute in their complaint. That statute, 42 U.
S. C. §1983, is also called the Civil Rights Act of 1871. Congress responded to
violence by the Klu Klux Klan by allowing victims to sue when anyone acting
“under color of state law” deprived them of federally guaranteed rights.

The Supreme Court reminds us
that, “[f]ederal pleading rules call for ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.’” Fed. Rule Civ. Proc.
8(a)(2). The rules, “do not countenance dismissal of a complaint for imperfect
statement of the legal theory supporting the claim asserted.”

The Supreme Court specifically
approved of a leading case on pleading standards that pre-dates Twombly
and Iqbal, Swierkiewicz v. Sorema N. A., 534 U. S. 506, 512
(2002). In Swierkiewicz, the Supreme Court unanimously struck down a
requirement the Second Circuit had dreamed up just for discrimination victims.
It required them to explain how they would meet the prima facie case
described in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973).

The
Supreme Court said that requiring such specific pleading is inappropriate
because (1) there are other ways to prove discrimination besides the McDonnell
Douglas inference; (2) “[b]efore discovery has unearthed relevant facts and
evidence, it may be difficult to define the precise formulation of the required
prima facie case”; and (3) the rules only require a plaintiff to “give the
defendant fair notice of what the plaintiff's claim is and the grounds upon
which it rests.”

The Johnson decision
makes clear that these reasons still apply today. Not only did the Supreme
Court issue this decision without a dissent, it did so without the normal
briefing. Johnson and the other police officers appealed to the Supreme Court
without a lawyer. Before deciding to accept the case, the Supreme Court decided
to issue a decision in their favor to reinstate their case and send it back for
discovery.

“Notice pleading” is the correct
standard for pleading discrimination claims; Swierkiewicz is still good
law; and Twombly and Iqbal are no longer reasons for such a tizzy.

____________________________

RICHARD RENNER is Of Counsel to the law firm of Kalijarvi, Chuzi, Newman & Fitch, P.C. He has
more than 30 years experience representing employees in a wide range of
civil rights and whistleblower cases. He has particular experience in
using litigation to advance the rights of employees. He served as Co-Chair of the Whistleblower Committee of the National
Employment Lawyers Association (NELA), is a Co-Chair of NELA's Ethics & Sanctions Committee, and won election to NELA's
Executive Board in 2014.